Philadelphia, B. & W.R. Co. v. Allen

• Decision Date: 16 November 1905
• Citation: 62 A. 245,102 Md. 110
• Parties: PHILADELPHIA, B. & W.R. CO. v. ALLEN.
• Court: Maryland Court of Appeals

62 A. 245

102 Md. 110

PHILADELPHIA, B. & W.R. CO. v. ALLEN.

Court of Appeals of Maryland

November 16, 1905

Appeal from Circuit Court, Talbot County; James A. Pearce and Wm. R Martin, Judges.

Action by Robert J. Allen against the Philadelphia, Baltimore & Washington Railroad Company. From a judgment for plaintiff defendant appeals. Affirmed.

The following is the declaration in the action:

"State of Maryland, Cecil County--to wit: Robert J. Allen, by his attorney, Albert Constable, sues the Philadelphia Baltimore & Washington Railroad Company, for that the defendant is a corporation possessing and operating a railroad from between Bridgeville and Seaford, and was a carrier of passengers from said Bridgeville to said Seaford for reward to the defendant; and the plaintiff became and was received by the defendant as a passenger, to be by it safely and securely carried upon said railroad on a journey from said Bridgeville to said Seaford, for reward to the defendant. Yet the defendant did not safely and securely carry the plaintiff upon said railroad on said journey, and so negligently and unskillfully conducted itself in carrying the plaintiff upon said railroad on said journey, and in managing the said railroad and the car and train in which the plaintiff was a passenger upon the said railroad on the said journey as aforesaid, that the plaintiff, while in the exercise of due care upon his part, was thereby thrown down and wounded and injured, and incurred loss of time and expense in and about the care of his wounds and injuries. And the plaintiff claims twenty thousand dollars. Albert Constable, Plaintiff's Attorney."

Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, SCHMUCKER, and JONES JJ.

L. Marshall Haines, for appellant.

Albert Constable, Jr., for appellee.

McSHERRY C.J.

The only question which is before the court for decision on this record arises on the plaintiff's demurrer to the defendant's third plea. The plea is undoubtedly bad and the demurrer to it was properly sustained; but the contention of the defendant, the appellant here, is that as the demurrer mounted up to the first error in the pleadings, and as the declaration is insufficient, because indefinite and vague, the trial court should have looked back to the declaration and should have held it bad, instead of striking down the third plea. So the ultimate and single inquiry presented is this: Is the declaration sufficient in law?

The declaration is brief, and will be found set forth above. The suit is between a passenger and a carrier to recover damages for a personal injury sustained by the former in consequence of the alleged negligence of the latter whilst transporting the plaintiff over its railroad. The objection to the declaration is that it fails to specify the particulars wherein the negligence of the railroad company consisted, and was therefore too uncertain to apprise the defendant of the precise act of negligence upon which the plaintiff relied to sustain a recovery. This objection is more of an academic than a practical one in this case; because, had the declaration been so vague as not to inform the defendant of the facts constituting the cause of action, the defendant would have surely demurred directly to it, instead of interposing several pleas, and would not have gone into a trial lasting five days before a jury on the issues of fact joined on those pleas, and would not have delayed until reaching this court before questioning the sufficiency of the narr, on the ground of the insufficiency of its averments. It seems a little singular that the company, after contesting a case on its merits through all of its stages, and until the rendition of the verdict against it and the entry of the judgment thereon, should fail to discover until the trial had ended and the record was in this court what neglect of duty it was charged with. There is no pretense that by reason of the vagueness of the narr's allegations the company was deprived of an opportunity to present any defense it might have had; and it is not even suggested that, if a new trial were awarded and the narr were amended so as to set forth more specifically the cause of the injury, the railroad company would be any more definitely apprised of the facts relied on to sustain a recovery than it was when it filed its pleas, or that it would be, in consequence of such an amendment, better prepared to shape its defense. The question before us is, therefore, not a practical one; but, as it is raised, it must be disposed of.

As we have said, this is a case between a passenger and a carrier of passengers to recover...